Explaining Eisentrager

The Second Amendment is for individual gun owners.

As the Supreme Court considers whether the U.S.
Constitution protects the prisoners held at Guantanamo Bay — it hears oral
arguments today in the case — the central issue is the meaning of a case
involving illegal combatants from World War II:
Johnson v. Eisentrager.

No one knows if Eisentrager will be interpreted broadly enough for the
government to win the Guantanamo case. But the more the Supreme Court studies Eisentrager, the better it will be for the civil liberties of American
citizens — because Eisentrager clearly teaches that the Second Amendment
protects a right held by individuals.

In May 1945, Germany surrendered to the Allies. Yet some German soldiers in
China continued to fight alongside the Japanese army, until Japan surrendered.
The American army captured the German soldiers, and tried them by court-martial
in China as war criminals. Because the German national government had
surrendered, the Germans who continued to fight were violating the laws of war.

The Germans argued that their courts-martial violated their Fifth Amendment
due-process rights. Their attorneys pointed out that the Fifth Amendment is not
by its terms limited to American citizens. The amendment says that "no person"
shall be put on trial for a felony unless he is first indicted by a grand jury;
"[n]or shall any person...be deprived of life, liberty, or property, without due
process of law."

After the Supreme Court heard the case, Justice Robert Jackson's majority
opinion held that the Germans had no Fifth Amendment rights. Fifth Amendment
rights for illegal combatants would lead to absurd results, Justice Jackson
explained.

First of all, the Fifth Amendment grand-jury requirement has an express
exception for "cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger." In other words, a
soldier or active-duty militiaman can be court-martialed, even though he has not
been indicted by a grand jury. If the Germans could invoke the Fifth Amendment,
then they would have rights not enjoyed even by Americans in military service.

Moreover, wrote Justice Jackson, if the Germans could invoke the Fifth
Amendment, they could just as well invoke the Second Amendment and the rest of
the Bill of Rights. This would lead to the ridiculous result of American
soldiers — out of obedience to the Second Amendment — being forbidden to disarm
the enemy:

If the Fifth Amendment confers its rights on all the world except Americans
engaged in defending it, the same must be true of the companion civil-rights
Amendments, for none of them is limited by its express terms, territorially or
as to persons. Such a construction would mean that during military occupation
irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could
require the American Judiciary to assure them freedoms of speech, press, and
assembly as in the First Amendment, right to bear arms as in the Second,
security against "unreasonable" searches and seizures as in the Fourth, as
well as rights to jury trial as in the Fifth and Sixth Amendments.

The gun-prohibition lobby has long argued that the Second Amendment "right of
the people" protects only the power of American state governments to have
militias. This argument is not consistent with the court's opinion in Eisentrager. The "irreconcilable enemy elements, guerrilla fighters, and
'were-wolves'" in Justice Jackson's hypothetical are obviously not American
state governments. They are individuals, and as individuals would have Second
Amendment rights, if the Second Amendment applied to non-Americans.

Nor are the characters in Justice Jackson's hypothetical militia members. A
militia is an organized force under government control; in contrast, "guerrilla
fighters" or "were-wolves" are individuals or small groups functioning in areas
beyond the reach of any friendly government.

The legal distinction between militia and guerrillas was well known during
World War II. As Stephen Halbrook details in his book
Target
Switzerland, the Swiss made extensive plans for their militia forces —
consisting of almost the entire able-bodied adult male population — to resist a
German invasion to the last man. But the Swiss government also warned its
citizens not to engage in guerrilla warfare on their own; the militiamen
fighting the Germans would be entitled to the protection of the rules of war and
international conventions, but guerrillas would not.

Having served as a judge at the Nuremburg trials, Justice Jackson was
presumably familiar with the distinctions in the international laws of war
between guerillas and soldiers/militia.

Johnson v. Eisentrager was, despite its unusual circumstances,
a typical Supreme Court Second Amendment case. While the court has issued only a
few opinions discussing the Second Amendment in detail, the court has written
many opinions in which the Second Amendment is mentioned briefly, in order to
make a point about something else. And in these mentions, the Second Amendment
is overwhelmingly considered a right conferred upon individuals, not
state-sponsored militias.

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